Rule of law: it's time the EU Council said 'yes'

To have these countries turn away from the EU's foundational values of rule of law, democracy and respect for fundamental rights is an existential crisis for Europe.

In theory, the EU treaties supply a response mechanism: Article 7 of the Treaty on European Union.

Article 7 empowers the EU to determine that there is a clear risk of a serious breach of the rule of law in a member state, and ultimately impose sanctions on the member state at issue, for example the suspension of voting rights in the Council.

But this requires unanimity amongst member states, and with the virus now in three countries, that looks impossible to achieve.

Article 7 has now been triggered with Poland and Hungary, but little to no progress has been made in either case.

The Commission – and the EU Parliament – have been trying to find alternative ways forward, but their attempts are being continually thwarted by the council.

Start working together

Unless the three arms of the EU start to work together, the virus risks spreading further.

Last month, the European commission published a communication on Further Strengthening the Rule of Law within the Union.

The communication requests input on what the EU can do to build a common rule of law culture in the EU, strengthen the rule of law at the national level and offer better enforcement when rule of law problems in member states aren't being sufficiently addressed at the national level.

This isn't the first time the commission has attempted to address this dire situation.

In May of last year, it proposed a law that would make the grant of EU funding to member states conditional on the state of the rule of law at the national level.

The idea is that respect for the rule of law ensures that EU spending in the member states, and ultimately, the EU budget itself, is sufficiently protected from misuse or corruption.

The response of the Council's Legal Service (CLS) was no, no and no.

First, it felt that the proposed regulation was incompatible with Article 7, which serves, according to the CLS, as the sole method for addressing rule of law problems in the member states.

Second, it felt that the stated legal basis for the proposal – Article 322 of the Treaty of Lisbon which permits the EU to adopt laws concerning financial rules – was improper because the proposal failed to firmly establish a link between rule of law deficiencies and sound financial management.

Finally, the CLS objected on two very technical issues in relation to the process for adopting measures under the proposed mechanism.

Make no mistake – the proposal has its problems, and the CLS correctly identified some of them.

For example, the proposal doesn't adequately define what is meant by 'generalised rule of law deficiencies'.

Beyond that, it doesn't give enough thought to how the suspension or termination of funds might more directly harm some people and organisations that were the ultimate target of the funds and what measures might have to be put in place to ensure that deserving parties still receive financial support.

But that doesn't mean the whole idea should be rejected.

In fact, financial penalties are likely to be the only way to ensure wayward governments change their behaviour.

Council is roadblock

This roadblock seems to be more evidence that the council is not serious about meaningfully confronting rule of law backsliding.

As well as deeming a 'soft' Rule of Law Framework developed by the commission in 2014 as unlawful, its main move has been to establish an essentially secret annual rule of law dialogue for which no input is solicited from stakeholders and from which no papers or conclusions are published.

This is not the behaviour of an organisation committed to promoting the rule of law.

Contrast this to the European parliament, which has passed resolutions condemning actions in Hungary and Poland, and which offered meaningful amendments to the commission's proposal in January of this year that partially address the CLS's concerns.

Nevertheless, the proposal on financial penalties seems to be on hold.

Whether the commission will continue to work on it is likely to depend on the outcome of the rule of law consultation launched with the communication.

The commission has asked for responses from all interested stakeholders, including the EU institutions themselves.

Presumably the council will have something to say – hopefully this time it will be 'yes'.